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Pao Mee Xiong v. Michael J. Astrue

August 1, 2011

PAO MEE XIONG,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Pao Mee Xiong ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Magistrate Judge for Findings and Recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed her application on August 16, 2005, alleging disability since April 1, 2005, due to depression, a sleep condition, back pain and asthma. AR 85-89, 114-119. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 39, 73-77, 80-84. ALJ James Berry held a hearing on July 24, 2007, and issued a decision denying benefits on August 16, 2007. AR 14-29, 43-70. The Appeals Council denied review on February 25, 2010. AR 4-7.

Hearing Testimony

ALJ Berry held a hearing on July 24, 2007, in Fresno, California. Plaintiff appeared with her attorney, Jeffrey Milam, and testified with the help of an interpreter. Vocational expert ("VE") Jose Chaparro also appeared and testified. AR 43.

Plaintiff testified that she was born in Laos in 1958. AR 47. She does not hear well and wears hearing aides in both ears. AR 47. Plaintiff is married and lives with her husband, who works, and 5 of her children. AR 48. The youngest child living with her is 6. Plaintiff came to the United States from Thailand, though she does not remember when, and is not a citizen of this country. AR 49. Plaintiff does not know what her husband does for work, only that he works "in a company." AR 50.

Plaintiff did not go to school in Thailand or the United States. She understands some of the words in the Hmong Bible, but does not read or write in English. AR 50. Plaintiff worked once in the United States for two weeks. She has never had a driver's license and her youngest sister often takes her places. AR 51, 52.

Plaintiff did not believe that she could work at any job because she has a "lot of worries, a lot of issues in [her] head and can't really think of what [she] needs to do." AR 52. Plaintiff takes medication for this and sees a mental health doctor. AR 52. When asked what she worries about, Plaintiff testified that her ears don't work well and she has a lot of illnesses. She also has problems with her back. AR 53. Her worries affect her sleep and eating and sometimes make her think that she wants to die. AR 54.

Plaintiff goes to church with her family once a week and her children read the Bible to her. When she's at church, she does not visit with people because of the issues in her head. AR 54. Plaintiff went to the last Hmong New Year celebration but there was nothing for her to do and she stayed by herself. AR 55.

Plaintiff explained that her back pain hurts all the time and that she has difficulty moving. The pain spreads to her shoulders and seems like it prevents her from breathing. Plaintiff thought that she could be on her feet for about 30 minutes at one time and sit for about 60 minutes at once. She can carry less than a half gallon of milk. AR 55-57. She could walk past about 3 or 4 houses before needing to stop. AR 61. Plaintiff thought that she could concentrate for about 10 minutes at a time. AR 58.

Plaintiff takes medicine everyday but it does not really help the pain. She also lies down to help with the pain and when the medication makes her drowsy, about 7 to 8 times per day. She said she lies down more than she stands during the day. AR 57-58. When she lies down, she uses ice and Ben-Gay. Her daughter gives her massages. AR 59. She also tries Asian methods of treatment. AR 60.

Plaintiff's children do most of the housework and her husband does the cooking. Plaintiff cannot do these things because if she bends to sweep the floor, she passes out or would be badly hurt. AR 59.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, who was illiterate and had no past relevant work experience. This person could lift and carry 20 pounds occasionally, 10 pounds frequently, and sit, stand and walk for 6 hours each. This person would need to avoid exposure to unprotected heights and dangerous moving machinery. This person could perform simple, repetitive tasks and maintain attention, concentration, persistence and pace. This person could adapt to usual changes in the work setting, adhere to safety rules and relate and interact with others. This person would need to avoid exposure to loud noise. The VE testified that this person could perform the light positions of flower picker, housekeeping cleaner and tier. AR 63-64.

For the second hypothetical, the ALJ asked the VE to assume that this person could lift and carry less than 10 pounds, sit for one hour, stand for 30 minutes and walk less than one block. This person would need to lie down 7 or 8 times a day for an indeterminate amount of time and would have difficulty maintaining concentration for more than a 10 minute span. The VE testified that this person could not perform any work. AR 64.

Plaintiff's attorney asked the VE to add the following limitations to the first hypothetical: a fair ability to understand and remember very short and simple instructions, a poor ability to remember detailed instructions, a poor ability to maintain attention and concentration, a fair ability to accept instructions from supervisors and respond appropriately, a poor ability to sustain an ordinary routine without special supervision, a poor ability to complete a normal workday or workweek without interruption at a constant pace, a poor ability to interact with co-workers and a poor ability to deal with various changes in the work setting. This person would also have a moderate likelihood of emotionally deteriorating in the workplace. The VE testified that this person could not work. AR 65.

Plaintiff's attorney also asked the VE to add the following limitations to the first hypothetical: this person can stand and walk for 0 to 2 hours and would be unable to stand erect. This person could sit for 4 to 6 hours but cannot sit in an erect fashion. This person would need a walker if she planned on walking long distances or on uneven terrain. She could lift 10 to 20 pounds bilaterally. This person could not perform prolonged bending, stooping or crouching and would be limited to frequent reaching, handling and fingering. The VE testified that this person could not work. AR 66.

Plaintiff's attorney next asked the VE to assume that this person had a sedentary residual functional capacity with visual limitations. This person could perform simple, repetitive tasks. The VE testified that the light positions identified in the original hypothetical would not be available. AR 67.

Plaintiff's attorney also asked the VE to assume that this person could perform simple, repetitive tasks, lift 20 pounds occasionally and 10 pounds frequently, stand and walk for 6 hours and sit for 6 hours. This person could not drive because of a limited field of vision and had to avoid concentrated exposure to fumes, dust, odors, gases and poor ventilation. This person also needed to avoid hazards. The VE testified that this person could perform the positions of flower picker, housekeeping cleaner and tier. AR 67-68. If this person could not be around a lot of background noise, she could not perform the tier position but could perform the positions of flower picker and housekeeping cleaner. AR 69.

Medical Record

X-rays of Plaintiff's left foot taken on July 1, 2003, showed an undisplaced fracture involving the base of the fifth metatarsal. AR 178.

From July 24, 2003, through August 25, 2005, Plaintiff received chiropractic treatment for neck and back pain and headaches. At her initial visit in July 2003, she reported that she had left hip pain after a trip and fall in June 2003. AR 142. In April 2005, she reported that she fell and hit her head on the wall. She reported a dull, radiating pain and was taking Advil. AR 135-143.

On April 26, 2005, Plaintiff reported falling and hitting her head after tripping on something. AR 206. X-rays of her cervical spine performed on April 27, 2005, showed mild levoscoliosis that was likely due to muscle spasm. There were no other significant abnormalities. AR 173. X-rays of her thoracic spine showed mild dextroscoliosis centered at T6. AR 174.

On September 8, 2005, Plaintiff saw Greg Hirokawa, M.D., for a psychiatric evaluation. Plaintiff complained of feeling depressed and anxious, with poor sleep. She cries easily and occasionally thinks about suicide. Plaintiff primarily stays home and suffers fatigue, loss of interest, poor concentration and forgetfulness. She also reported hearing loss, vision problems and feeling worthless. Plaintiff reported that she forgets to take her medicine and also complained of flashbacks of when she was in her home country and the problems with the war. She came to the United States in approximately 1975 and reported that she has been depressed for a long time. Plaintiff has a 4 year old son with various medical problems, including a past heart operation. AR 144.

Plaintiff denied prior mental health treatment and denied psychiatric hospitalizations. On mental status examination, Plaintiff's hygiene was fair, her eye contact was poor and her facial expression was sad. Thought content was appropriate and she denied auditory or visual hallucinations. Her mood was depressed and her affect was tearful. Plaintiff reported poor sleep and appetite. She did not know the date and her intellectual functioning appeared to be in the below average range. Recent and past memory was intact. She did not know why the moon looked larger than the stars or why food is refrigerated. She could not perform simple calculations but she could perform a simple, two-step command. Plaintiff does not perform household chores because she is forgetful and has left food on the stove before. During a typical day, she stays home, takes care of her child and feels depressed. AR 145-147.

Dr. Hirokawa diagnosed major depressive disorder, recurrent, moderate, and post traumatic stress disorder. There was no evidence of exaggerating and there did not appear to be any inconsistencies during the evaluation. Her inability to perform certain segments of the examination appeared to be reflective of cultural and educational issues rather than cognitive deficits. The likelihood of her condition improving over the next 12 months was fair with treatment, poor without treatment. Her attitude towards seeking employment is poor and she had no prior work history. AR 148.

Dr. Hirokawa opined that Plaintiff had a fair ability to understand and remember very short and simple instructions, a poor ability to understand and remember detailed instructions, a poor ability to maintain attention and concentration, a fair ability to accept instructions from supervisors and respond appropriately, a poor ability to sustain an ordinary routine without special supervision, a poor ability to complete a normal workday or workweek without interruption at a consistent pace, a poor ability to interact with co-workers and a poor ability to deal with various changes in the work setting. She would also have a moderate likelihood of emotionally deteriorating in the workplace. AR 148-149.

On September 12, 2005, Plaintiff had x-rays of her lumbosacral spine taken. The images revealed questionable lumbarization of L6 versus 5 lumbar-shaped vertebral bodies and small riblets at T12. There were no compression deformities or malalignment. The images also showed questionable early degenerative changes of the left SI joint. AR 156.

On September 17, 2005, Plaintiff saw Pedram Enayati, M.D., for a consultive physical examination. She complained of severe depression, a history of multiple syncopal episodes over the past 2 years and a history of severe back and spine pain for the past 5 to 6 months. Plaintiff reported that during one episode, she fell and fractured her left fifth metatarsal. She reported another episode where she fell and hit her head and had to be hospitalized due to an altered mental status. Plaintiff stated that she has seen multiple physicians for this problem but they have not found a cause of her falls. She also explained that her constant, chronic back pain began after a falling episode in which she fell and injured her back. The pain does not radiate and is much worse when she lies down on her back. As to her depression, Plaintiff reported that she is on multiple medications that slightly help her symptoms, though she continues to have severe anhedonia and is unable to take pleasure in any activities. She denied suicidal ideations and admitted to worsening forgetfulness. Plaintiff does not cook and occasionally needs help from her husband when dressing and showering. AR 150-151.

On examination, Plaintiff appeared severely depressed during the entire history and physical. She constantly cried and when asked why, she stated that it was mostly due to the pain in her back. Her affect was very flat and she did not make good eye contact. Plaintiff had decreased range of motion in her neck and tenderness to palpation of the cervical spine, thoracic spine and lumbar spine. She also had paraspinal tenderness on both the right and left. There was evidence of clubbing in Plaintiff's bilateral hands, but no edema, and evidence of bilateral atrophy of her thighs. There was tenderness to palpation in the muscles of her bilateral upper extremities and tenderness to palpation of the left foot fifth metatarsal bone. Pulses were in all extremities. Plaintiff had extreme difficulty raising from a sitting position and exhibited difficulty sitting on the examination table. When asked to stand erect, she could not do so for more than 3 seconds due to pain in her back. She has to lean forward in order to stand in a comfortable stance. Range of motion in her spine was decreased and straight leg raising was negative bilaterally. There was no evidence of joint swelling or joint tenderness on examination of the bilateral hands, wrists or elbows. Plaintiff had 4/5 muscle strength in her bilateral extremities with decreased muscle bulk in her bilateral upper extremities and bilateral thighs. Sensory examination and deep tendon reflexes were normal. AR 152-154.

Dr. Enayati diagnosed severe depression, low back pain and cervical spine tenderness and a history of syncopal episodes with unknown cause. He believed that she could stand and walk for 0 to 2 hours, but could not stand erect. She could sit for 4 to 6 hours, but could not sit erect. Plaintiff would need a walker if she planned on walk long distances or on uneven terrain. She could lift and carry 10 to 20 pounds bilaterally. Plaintiff could not perform prolonged bending, stooping or crouching and would be limited to frequent reaching, handling and fingering. Dr. Enayati believed that Plaintiff would need medical follow-up for her left foot, her lumbar and cervical spine, and for possible neuropathy secondary to cervical or lumbar impingement. AR 154-155.

A bone density test performed on May 5, 2005, suggested osteopenia. AR 200-201. From May 2005 through December 2005, Plaintiff complained of pain in her back, neck and right shoulder. In September 2005, Plaintiff cried during the examination and was diagnosed with depression. AR 189, 193-199.

On December 9, 2005, State Agency physician O. Nawar, M.D., completed a Physical Residual Functional Capacity Assessment. He opined that Plaintiff could lift 20 pounds occasionally, 10 pounds frequently, stand and/or walk for about 6 hours and sit for about 6 hours. Plaintiff had to avoid driving because of her limited far acuity and field of vision. She also had to avoid concentrated exposure to fumes, etc., and hazards. AR 232-239. This opinion was affirmed on October 6, 2006. AR 239.

On December 20, 2005, State Agency physician Evangeline Murillo, M.D., completed a Psychiatric Review Technique Form. She opined that Plaintiff had mild restrictions in activities of daily living, mild difficulties in maintaining social functioning and mild difficulties in maintaining concentration, persistence or pace. AR 211-224. In a Mental Residual Functional Capacity Assessment, Dr. Murillo opined that Plaintiff would have moderate limitations in her ability to understand, remember and carry out detailed instructions. Plaintiff could sustain simple, repetitive tasks with adequate pace and persistence. She could also adapt and relate to co-workers and supervisors. AR 225-227. This opinion was affirmed on October 17, 2006, by State Agency physician Archimedes Garcia, M.D. AR 227.

On January 18, 2006, Plaintiff continued to complain of back pain, neck pain and right shoulder pain. Plaintiff was calm and not in distress, but appeared withdrawn. AR 186.

Plaintiff was seen at Kings Winery Medical Clinic on January 27, 2006. She complained of right shoulder pain and neck pain after a recent fall. She denied dizziness at the time of the fall and reported a similar episode in April 2005. On examination, she had decreased range of motion in her right shoulder and could not turn her neck fully to either side. Plaintiff was diagnosed with a right shoulder strain/sprain, syncope, osteopenia and allergy/heartburn. AR 185.

On February 7, 2006, Plaintiff underwent an EEG based on her history of syncopal episodes. The EEG was normal. AR 158.

Plaintiff returned to Kings Winery Medical Clinic on February 22, 2006. She complained of pain in the back of her neck, upper back, legs and shoulders, as well as headaches and stomach aches. On examination, Plaintiff had tenderness to palpation of her lower back, the back of her neck and her right shoulder. She had decreased range of motion in her right shoulder. Plaintiff was diagnosed with osteopenia, right shoulder pain, low back pain, asthma, gastritis, migraine headaches and a cold. AR 185.

On March 11, 2006, Plaintiff complained of coughing, chest pain, headaches and back pain. She was active and not in distress. She was diagnosed with probable pneumonia/bronchitis and given medication. AR 180.

Plaintiff was seen at Kings Winery Medical Center on March 25, 2006, for mental health treatment. Plaintiff looked "down in the dumps" and reported poor sleep, low energy and lack of interest. She had a depressed mood, with blunted affect. Plaintiff was almost tearful and complained of forgetfulness. She was diagnosed with somatoform disorder, not otherwise specified, and was taking Paxil and Trazadone. AR 276.

On March 28, 2006, Plaintiff saw Ko Fang, Ph.D., at Fresno County Mental Health. Plaintiff reported depression since 1986, with worsening since 2000. She reported feeling overwhelmed and anxious and described a prior suicide attempt by hanging. Dr. Fang noted that Plaintiff's depression and anxiety were severe. Her cognitive performance was severely impaired and he considered her a "severe" danger to herself. AR 240-244.

In May and June 2006, Plaintiff began reporting right arm pain. AR 272, 274. In July 2006, Plaintiff was in no acute ...


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